State v. Arceo

*34NAKAYAMA, Justice,

dissenting.

I disagree with the majority’s holding in Part 111(C)(2) that the trial court’s failure to require the prosecution to elect a specific act upon which it would rely in seeking convictions of the charged offenses, or its failure to give a specific unanimity instruction on each count, constituted plain error. Because the defendant neither objected to the general unanimity instruction given to the jury, nor requested a specific unanimity instruction, and because the error did not effect the fundamentally fair trial received by defendant, I do not believe it rises to the level of plain error.

Hawai'i Rules of Penal Procedure (HRPP) Rule 52(b) provides that “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” (emphasis added). The word “may” is dispositive because it indicates the court’s notice of plain error is discretionary, not mandatory. This rule has been interpreted by this court as follows:

This court’s power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system—that a party must look to his or her counsel for protection and bear the cost of counsel’s mistakes. Nevertheless, where plain error has been committed and substantial rights have been affected thereby, the error may be noticed even though it was not brought to the attention of the trial court.

State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 75 (1993) (citing State v. Fox, 70 Haw. 46, 55-56, 760 P.2d 670, 675-76 (1988) (other citations omitted)). “Plain error is a highly prejudicial error affecting substantial rights, and is found only in exceptional circumstances.” United States v. Ancheta, 38 F.3d 1114, 1116 (9th Cir.1994) (emphasis added) (citing United States v. Kessi 868 F.2d 1097, 1102-03 (9th Cir.1989)). “[T]he decision to take notice of plain error must turn on the facts of the particular case to correct errors that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’ ” Fox, 70 Haw. at 56, 760 P.2d at 676 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).

The question of whether a trial court’s failure to compel-the prosecution to elect a specific act upon which it would rely in order to establish the conduct of the charged offense, or the trial court’s failure to give the jury a specific unanimity instruction, rises to the level of plain error when a defendant (1) fails to object to the jury instruction given, or (2) fails to request the specific unanimity instruction, has been addressed by the Alaska Court of Appeals in State v. Covington, 711 P.2d 1183 (Alaska.Ct.App.1985), appeal after remand, 747 P.2d 550 (Alaska.Ct.App.1987) and the Michigan Supreme Court in People v. Van Dorsten, 441 Mich. 540, 494 N.W.2d 737 (1993). Both courts concluded that these errors did not rise to the level of plain error.

On a petition for rehearing, the court in Covington, 711 P.2d 1183 (Covington II), reversed its previous opinion in Covington v. State, 703 P.2d 436 (Alaska.Ct.App.1985) (Covington I). In Covington I, the court reversed and remanded the ease on the basis that the prosecution failed to elect specific incidents upon which it intended to rely for conviction, and the trial court failed to instruct the jury on a specific unanimity instruction. Id. at 441. The majority relied on and quoted extensively from Covington I, but failed to acknowledge the subsequent rehearing of the case.

On rehearing, decided six months later, the prosecution challenged the court’s holding in Covington I, “that [defendant] was denied his constitutional right to a unanimous verdict.” Covington II, 711 P.2d at 1184. Covington II reversed this holding and affirmed the judgment of the trial court, holding that these errors were not plain error. As in the present case, in Covington II, the prosecution argued that the defendant failed to (1) raise in the trial court this issue concerning his constitutional right to a unanimous jury verdict, (2) object to the jury instructions given, or (3) indicate at any stage of the proceedings that he was concerned about a unanimous verdict. Id. at 1184. Defendant argued on rehearing that he raised these issues in arguments concerning deficiencies *35in the indictment and the denial of his bill of particulars, and alternatively, that this issue “affected his constitutional right to an unanimous jury verdict” and therefore, qualified as plain error. Id.

The court initially determined that defendant failed to sufficiently raise this issue in the trial court and therefore, considered the errors under the plain error doctrine.

In citing Alaska Rule of Criminal Procedure 47(b), which is identical to HRRP Rule 52(b), the Covington II court applied the following standard to determine if the errors rose to the level of plain error. “Under the ‘plain error’ embodied in Alaska Rule of Criminal Procedure 47(b), [the supreme court] will not take notice of an error not brought to the attention of the trial court unless it affects a substantive right and is obviously prejudicial.” Id. at 1184 (citations omitted) (emphasis added). The court observed:

We are satisfied that the issue of jury unanimity is the kind of substantial right properly reviewed under the plain error doctrine. We are also satisfied that, under the circumstances outlined in our earlier opinion, the error in this case was sufficiently obvious to satisfy the plain error test. We are, therefore, left with the requirement that the error substantially prejudiced a defendant before he can rely on it for reversal. We considered this aspect of the plain error test in Van Hatten [v. State, 666 P.2d 1047, 1056 (Alaska.Ct.App.1983).]
[T]he plain error rule has been held to embody the requirement that the error complained of is obviously prejudicial. [Citation omitted.] There has been little effort to define the obvious prejudice requirement of the plain error rule. We think it clear, however, that the term obvious prejudice demands the application of a standard more stringent than the harmless beyond a reasonable doubt test applied to determine harmless error in cases where errors of constitutional dimension are preserved for appeal by timely objection.

Covington II, 711 P.2d at 1184-85 (citation omitted, some brackets added, others in original). The court reasoned that the correct standard to apply under a plain error analysis is that an “error is harmless where it can be fairly said that the alleged error did not appreciably affect the jury’s verdict.” Id. at 1185 (citation omitted).

The court next examined whether the error in failing to require the prosecution to elect a specific incident within each count and the failure of the court to give a specific unanimity instruction appreciably affected the jury’s verdict.

The complaining witness, the daughter of the defendant, testified that defendant began sexually abusing her when she was nine or ten years old, by sleeping with her, touching her breasts, and digitally penetrating her vagina. See, Covington I, 703 P.2d at 438. At age 13, after her mother died, she began sleeping in the same bed with her father. Id. At age 16, she testified she had sexual intercourse with her father “practically every night” up until age 19, when she moved out of the house. Id. The court noted that the complaining witness “was not able to differentiate between various incidents” of abuse. Covington II, 711 P.2d at 1185. “She testified that she shared a bed with her father during the totality of the time in question and that they engaged in sexual intercourse almost every night.” Id. The defendant acknowledged sharing the bed with his daughter, but denied ever having intercourse with her. Based on this divergence in testimony, the court observed:

Under the circumstances, no impeaching or contrary evidence was more applicable to one incident than another. Thus, each juror was faced with a straight question of credibility. Did he or she believe the victim, in total, or, based on [defendant’s] testimony and the impeachment and contradiction of the victim, did he or she have a reasonable doubt as to the accuracy of the victim’s testimony? The jury’s verdict on all counts established that it accepted the victim’s testimony and concluded that [the defendant] was guilty, beyond reasonable doubt, of the offenses in question. Necessarily, the jury rejected [the defendant’s] testimony and the impeaching and *36contradictory evidence upon which he relied.

It concluded:

Under the circumstances, the record unequivocally establishes that the trial court’s error in not requiring the state to elect among incidents, or alternatively, in failing to provide a curative instruction, did not appreciably affect any verdict against [the defendant]. Consequently, we reconsider our decision to reverse on this ground and conclude that the trial court’s error was not plain error under Alaska Rule of Criminal Procedure 47(b).

Covington II, 711 P.2d at 1185.

In Van Dorsten, 441 Mich. 540, 494 N.W.2d 737, a case not involving a minor, the defendant was charged and convicted of a single count of first-degree criminal sexual conduct based on five separate acts of sexual penetration. The trial court gave the jury a general unanimity instruction. However, the defendant did not object to this instruction, or make a request for a further instruction concerning unanimity with respect to a particular penetration. The Michigan Court of Appeals reversed defendant’s conviction, holding that the failure to give a specific unanimity instruction constituted plain error resulting in “manifest injustice” to the defendant.1 Id., 494 N.W.2d at 738.

In reversing the judgment of the Court of Appeals, the Michigan Supreme Court held that any error by the trial court was harmless because the defendant never objected to the court’s instruction, did not request his own instruction and most importantly, because the verdict did not result in manifest injustice.

Similar to the Covington II analysis, the Supreme Court of Michigan noted that “[t]he number or specific identification of acts sexual penetration was not in dispute,” because “[t]he defendant’s position was simply that there was no sexual assault committed.” Van Dorsten, 494 N.W.2d at 739. It stated:

It was obvious to the participants in the trial that the verdict turned on whether the jury believed the testimony of the complainant and Terry Doyle on the one hand, or found reasonable doubt that any sexual assault occurred, as claimed by the defendant. Given that posture of the case, there was no reason for the parties to focus on the specifics of individual penetrations. In this context, the failure to give an instruction requiring unanimity on a particular act in no way impeded the defense or denied the defendant a fair trial.

Id. at 739.

Other courts have held, albeit not in the context of a plain error analysis, that a specific unanimity instruction was not warranted where the defendant denied engaging in any incidents of sexual abuse or contact, because the issue presented to the jury hinged on the credibility of the defendant and the complaining witness. In People v. Cooks, 446 Mich. 503, 521 N.W.2d 275 (1994), the court held that the defendant

did not present a separate defense to offer materially distinct evidence of impeachment regarding any particular act. He merely denied the existence of any inappropriate behavior. Thus, the sole task for the jury was to determine the credibility of the victim with respect to the pattern of the alleged conduct. Because neither party presented materially distinct proofs regarding any of the alleged acts, the factual basis for the specific unanimity instruction ... was nonexistent.

Id., 521 N.W.2d at 286. See also People v. Higgins, 9 Cal.App.4th 294, 307, 11 Cal.Rptr.2d 694, 698 (1992) (“[W]hen the issue presented to the jury is whether a defendant committed a course of conduct and not whether he committed a specific act on a specific day, the prosecutor does not have to elect a specific act and the jury need not unanimously agree on a specific act.”) (citation omitted). In People v. Deletto, 147 Cal.App.3d 458, 466-67, 195 Cal.Rptr. 233, 237-38 (1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2156, 80 L.Ed.2d 542 (1984), the minor victim alleged that the defendant sexually assaulted her on at least two occasions. The *37defendant asserted that the court erred in not giving a specific unanimity instruction to the jury. The court rejected this argument, stating:

[t]his is not a case in which different witnesses testified as to one incident but not the other or where different items in real evidence were introduced to prove one act but not the other, so that they jury might have distinguished between the credibility of different witnesses or the weight to be given various items of real evidence.

Id. at 466-67, 195 Cal.Rptr. at 237-38 (citations omitted).

These cases, particularly Covington II and Van Dorsten, establish that where a defendant denies all instances of sexual abuse or contact, the concerns regarding whether the jury was unanimous in its verdict are nonexistent, because the jury was left to either accept or reject the complainant’s testimony. Thus, the issue is one of credibility. Any errors that may have resulted in failing to elect or failing to instruct the jury were deemed harmless because they had no effect on the ultimate verdict of the jury.

I am in agreement with the majority that an accused is guaranteed the right to an unanimous verdict in a criminal prosecution under article I, section 5 and 14 of the Ha-wai'i Constitution and that the issue of jury unanimity is the kind of substantial right properly viewed under the plain error analysis. See Covington II, 711 P.2d at 1184. However, based on Covington II and Van Dorsten, and utilizing a more sensible plain error analysis to include (1) whether substantial rights of the defendant were affected, and ⅝v. whether this error was obviously prejur \»i to the defendant, I am not convinced chat the defendant was prejudiced by (a) the court’s failure to require the prosecution to elect the specific act upon which it was relying to establish the conduct element of the charged offense; or (b) the trial court’s failure to give the jury a specific unanimity instruction. I would not, therefore, recognize these errors as plain error.

Applying this standard to the present case necessitates the same conclusions found in Covington II and Van Dorsten. The minor testified that defendant subjected him to five acts of sexual penetration, and at least two acts of sexual contact during the time charged in the indictment.2 On erossexami-nation, the minor admitted that he told Detective Rojas of the Maui Police department that his father had touched him approximately twelve times, but could only guess at the specific number of instances, because he had a difficult time remembering what had occurred three years ago. Nevertheless, the defendant denied all acts of sexual penetration, or sexual contact as testified to by his son.3 By reason of this sharply contrast*38ing testimony, the jury was faced with an issue of credibility, of believing the minor, or, based on defendant’s testimony and the impeachment of the minor, whether there existed reasonable doubt as to the accuracy of the minor’s testimony. The jury’s verdict of guilty on all counts established that it accepted the minor’s testimony and rejected the defendant’s as well as the impeaching evidence upon which he relied. It likewise concluded that the defendant was guilty beyond a reasonable doubt of the offenses in question. Had the defendant admitted to one or two incidents of sexual penetration or contact with his son, then there would be a reasonable possibility that individual jurors could have rejected some of these incidents, but accepted the other incidents as proven. That being the case, the jurors could have agreed that the defendant committed one or two of the incidents, but be in general disagreement as to which specific incident. This scenario could then only be remedied by a specific unanimity instruction.

However, that was not the substance of defendant’s testimony. The defendant denied in toto all incidents of sexual penetration or sexual contact with the minor. Because this was an issue of credibility, and credibility alone, I would hold that defendant was not obviously prejudiced because these errors did not contribute to defendant’s conviction on all counts. Accordingly, these errors were harmless and did not rise to the level of plain error.

Because this court has repeatedly cautioned that the plain error rule should be exercised sparingly and utilized with great discretion and caution, see Kelekolio, supra, we should not therefore, be so quick to reward a defendant for inviting error by reason of his or her own malfeasance. The stringent standard traditionally accorded to the plain error rule has eroded in recent years and I urge that it be restored.to the status and role for which it was designed.

Further, I agree with the majority’s holding in Part 111(A)(2)(c) that under the current Hawaii Penal Code (HPC), sexual assault in the first degree pursuant to Hawaii Revised Statutes (HRS) § 707-730(l)(b) (1993), and sexual assault in the third degree pursuant to HRS § 707-732(l)(b) (1993) are not “continuing offenses” because they represent distinct acts and therefore, separate offenses. However, I urge the Hawaii legislature to enact a “continuous sexual abuse of a child” statute under the HPC, similar to the statute enacted by the State of California, to cure the problems inherent in the criminal prosecution of sexual abuse cases involving a minor of tender years who is unable to specifically recall dates, instances or circumstances surrounding the abuse.

In cases involving the sexual assault of a child, the prosecution’s key .witness is usually a child with a limited ability to recall alleged acts with specificity. This is particularly problematical and evident in cases involving sexual assault of a child by a parent, where the child may be of tender years, under the exclusive control of the parent or guardian, and when the abuse has occurred on a number of occasions over a period of time. The problems manifested by these cases has been articulated as follows:

In cases involving a continuing pattern of sexual abuse of very young children, in which the evidence consists primarily of the children’s statements, it is not likely that they will clearly identify the specific instances when particular acts took place. The difficulty of presenting testimony limited to a specific incident in such cases was discussed in State v. Brown, 55 Wash.App. 738, 780 P.2d 880 (1989):
Particularly when the accused resides with the victim or has virtually unchecked access to the child, and the abuse has occurred on a regular basis and in a consistent manner over a prolonged period of time, the child may have no meaningful reference point of time or detail by which to distinguish one specific act from another. The more frequent and repetitive the abuse, the more likely it becomes that the victim will be unable to recall specific dates and *39places: Moreover because the molestation usually occurs outside the presence of witnesses, and often leaves no permanent physical evidence, the state’s case rests on the testimony of a victim whose memory may be clouded by blur of abuse and a desire to forget.

People v. Aldrich, 849 P.2d 821, 826 (Colo.Ct.App.1992) (citation omitted) (quoting State v. Brown, 55 Wash.App. 738, 780 P.2d 880 (1989)). I believe that a child’s inability to specifically remember every detail and date of an alleged assault should not form a basis on which to insulate a defendant from conviction.

This is best illustrated by the testimony of the minor in this case, who was six years old at the time the sexual abuse occurred. At trial, the minor testified to five separate acts of sexual penetration and at least two separate acts of sexual contact by his father. See, supra, note 3. On cross examination, the minor acknowledged that he told a detective from the Maui Police department that his father touched him approximately twelve times, however, at trial, he could only guess as to the number of specific instances because he had difficulty in remembering what had happened three years ago. One year before trial, the minor testified before the grand jury that his father inserted his finger into his butt “more than once”; inserted his penis into his butt “more than once”; put his mouth on his penis “more than once”; and placed his penis on the minor’s penis “more than once.” The divergence in the minor’s testimony before the grand jury and trial regarding the number of times sexual penetration and sexual contact occurred makes clear the difficulty in charging a defendant with separate offenses based on the testimony of a child, when the sexual conduct is continuous and over a period of time. It also begs the question as to when several distinct acts of sexual abuse merge into and constitute a continuous course of conduct.

In weighing these competing interests with a defendant’s due process rights, and in an attempt to remedy this predicament and arbitrary line drawing, several jurisdictions 'have concluded that, under certain circumstances, sexual assault of a minor is a continuing offense. This allows the prosecution to base its charges on the testimony of the minor complainant, who is unable to recall with precision, the dates, instances, and other circumstances of the sexual acts committed by the defendant, without violating the defendant’s due process right to be informed of the charges that he or she faces.

In Huddleston v. State, 695 P.2d 8 (Okla.Crim.App.1985), the complainant, a nine-year-old girl, was sexually assaulted by her father while visiting him over the Christmas holidays. The court held that “when a child of tender years is under the exclusive domination of one parent for a definite and certain period of time and submits to sexual acts at that parent’s demand, the separate acts of abuse become one transaetion[.]” Id. at 10-11.4 There are obvious similarities between Huddleston and the present case. In this case, the complainant was six years old at the time his father allegedly committed the sexual assaults. These assaults occurred over a five-month period of time when he was under the exclusive control of his father. Moreover, although defendant was charged with two counts of sexual assault, he was charged with two separate degrees of the offense— one count was sexual assault in the first degree and one count was sexual assault in the third degree. Therefore, each class of prohibited acts constituted a single “transaction” for purposes of each charged degree of sexual assault.

In State v. Clark, 209 Mont. 473, 682 P.2d 1339 (1984), the defendant was charged with eight counts of sexual intercourse without consent. The twelve-year-old victim testified that her step-father had intercourse with her approximately forty times. The Montana Supreme Court observed that

[ijncest generally involves a continuing course of sexual conduct between two family members within the family home. Incestuous conduct usually consists of a series of unlawful sexual contacts between an *40adult family member and a child. In these respects, sexual offenses committed against a minor by a parent or step-parent are distinguishable from rape cases involving adult victims and a single criminal event in unfamiliar surroundings. In addition, children are less likely to distinguish dates and times with specificity.

Id., 682 P.2d at 1344. The Montana Supreme Court concluded that because the sexual assaults were based on one continuing act, the general charges filed against the defendant were as precise as possible under the circumstances. Id. at 1345.

Similarly, in Cooks, 446 Mich. 503, 521 N.W.2d 275, the defendant was convicted of one count of second-degree criminal sexual conduct based on three incidents of sexual penetration against a ten-year-old child. The victim was sexually assaulted on three occasions over a three day period, outside the presence of witnesses. The Michigan Supreme Court observed that “a specific unanimity instruction is not required in all cases in which more than one act is presented as evidence of the actus reus of a single criminal offense. The critical inquiry is whether either party has presented evidence that materially distinguishes any of the alleged multiple acts from the others.” Id., 521 N.W.2d at 279 (emphasis in the original) (footnote omitted). The court held that “the multiple acts alleged by the prosecutor were tantamount to a continuing course of conduct,” thus, it concluded that an offense involving the sexual assault of a minor could be based on multiple alleged acts. Id. at 286.

In State v. Spigarolo, 210 Conn. 359, 556 A.2d 112 (1989), the defendant was charged with multiple counts of sexually assaulting his girlfriend’s two minor children. Specifically, the defendant was charged with two counts of sexual assault in the second degree based on six specific acts of sexual assault.5 The court held that the alternative acts were not conceptually distinct because “[t]he six specific acts ... involved subjecting the victims to either active or passive participation in sexual activity in a manner harmful to their physical or moral health.” Id., 556 A.2d at 129. Accordingly, the court accepted the state’s contention that the sexual assault acts were based on one continuing offense. Id. at 129. Likewise, in the present case, the minor testified to several acts of passive participation involving sexual activity with the defendant in a manner, which even the majority cannot dispute, were deleterious to his physical and moral health. As in Spigarolo, these acts are conceptually similar to the other acts that comprise each charged offense.

In determining whether a trial court should issue to the jury a specific unanimity instruction, the Spigarolo court adopted a two-prong test—originally set forth by the court in United States v. Gipson, 553 F.2d 453, 458-59 (5th Cir.1977)—and applied it to cases involving sexual assaults committed against minors. The Connecticut Supreme Court held that “a unanimity charge on a specific act is required if: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act.” Spigarolo, 556 A.2d at 128 (citations omitted), (emphasis in original). The court opined that a specific unanimity instruction was unnecessary because the defendant committed a continuing offense, and, therefore, the alleged acts were not conceptually distinct. The court held that

[t]he six specific acts ... involved subjecting the victims to either active or passive participation in sexual activity[.] Because the state was unable to specify with greater precision the times of the alleged incident, it necessarily proceeded under a theory that the defendant’s conduct was in the nature of a continuing offense.... Under these circumstances, the acts specified in the counts were not conceptually distinct within the meaning of Gipson.

Id. at 129. (citations omitted) (brackets in original).

In a vast number of cases involving sexual assaults against minors, California courts have varied in their applications of a continu*41ing conduct standard, or a standard based on specific acts. Consequently, in 1989, the California state legislature adopted a “continuing abuse of a child” statute6 that provides specific guidelines in determining when sexual assault of a minor is a continuing offense.7

In Higgins, 9 Cal.App.4th 294, 11 Cal.Rptr.2d 694, the California Court of Appeals held the statute to be constitutional and rejected the defendant’s claim that it violated his due process rights. The court reasoned that the defendant’s due process rights were not violated because he was charged with one offense, rather than multiple offenses, and because the information contained a specific period of five and a half months that referred to the time span during which the alleged acts occurred. Similarly, in the present ease, the defendant was charged with one offense per each degree of sexual assault that occurred during a specific period of five months.

Based on these cases, and in light of the fact that (1) the Hawai'i legislature, not this court, is charged with legislating policy interests of the citizens of Hawai'i, and (2) there is a need in this state of a statute similar to California’s that sets forth parameters and defines the circumstances under which a sexual assault of a minor is deemed a continuing offense, I strongly urge the legislature to enact a continuing sexual abuse of a child statute. Such a statute would address the problems presented when a child is unable to specify the time, places and circumstances of each act.

As the Idaho Supreme Court stated in State v. Rogers, 48 Idaho 567, 283 P. 44, 45 (1929):

It would be a very weak rule of law that would permit a man to ravish a fifteen year old girl ... and then say in effect: ‘You cannot convict me of this crime, as you did not guess the right date.’

For these reasons, I respectfully dissent.

. Although the Van Dorsten court did not specifically delineate plain error in its opinion, a fair reading of the term "manifest injustice,” as used by the court, shows that the 'court intended this meaning.

. Contrary to the majority opinion, the minor testified that his father engaged in sexual contact with him on, at least, two occasions. The first contact involved the father placing his penis on the minor's back, the second contact involved the placing of the father’s penis on his penis, at least one time. The minor testified:

Q; Okay. Now, do you remember other times, other places where your Dad touched you at the shelter?
A: The bedroom.
Q: Is that the same bedroom that’s shown here where it says, bed?
A: Yes.
Q: Where in the bedroom did that happen?
A: In the bed.
Q: In the bed and would that be in the day or the night.
A: Evening and the night.
Q: Did it happen once or more than once?
A: I think once.
Q: One time?
A: Maybe.
Q: Okay. What do you mean maybe.
A: Maybe it's more or maybe it’s once.
Q: Were you counting the time that things happened?
A: I don’t remember.

. The defendant testified that he touched his son in the shower only in the course of teaching him how to clean himself. On cross examination, he testified:

Q: Would you ever touch him when the two of you were taking showers together:
A: Yes.
Q: Would you explain how you touched him and what you were doing?
A: Well, um, first of all, he was a very young boy. He doesn’t know how to take shower yet by himself and I had to scrub medicated shampoo in his hair to take off the bugs and fleas. And I was teaching him how to do this personal hygiene. And I wash him, his entire body down, cleaning him....

According to this testimony and the fair import giving thereto, the father’s actions in teaching his *38six-year-old son personal hygiene habits did not include placing his penis on top of his son's penis, or placing his penis on his son’s back.

. The majority’s criticism of Huddleston is shortsighted as it fails to address those concerns previously enumerated, particularly that a child may have no meaningful reference point of time or detail by which to distinguish one specific act from another.

. Because Spigarolo involved two victims, the defendant was charged with two counts of sexual assault in the second degree. One count was based on three acts committed against one victim, and the other count was based on three acts committed against the other victim.

. California Penal Code § 288.5 provided impertinent part:

(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, ... or three or more acts of lewd or lascivious conduct ... with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child....
(b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred!,] not on which acts constitute the requisite number.

. The HPC does not contain a similar statute.